Tombstone epitaph., 1887-10-01
ARIZONA vs. MONTANA
RULINGS OF SECRETARY LAMAR.
When Townsite Claimants Fail to File Protds Against the Issuance of q Mining Patent They Virtually Waive all Claim to
 the Ground in Dispute.

fOrmulated an oplniOn LII SdSS 'h'oiY ing the validity of the Mountain Maid patent which seems to overturn the dof- trnes heretofore enunciated by the Supreme Court of Montana in the Butte Townsite cases vs. the Smoke House Lode patent. The decision is published in full in this number. The Courts of the two Territories both claim that their decisions are in accord with the decisions of the United States Supreme Court, so far as the opinions of that Court bear upon the matter in dis pute, but the exact point at issue in these cases has not yet been decided by that tribunal. Secretary Lamar has, however, thrown the weight of his legal mind on the side of the Montana cases. After the Supreme Court of Montana had de- cided the Smoke House Lode cases against the Butte Townste, the inhabi. tants of the Townsite made application to the Secretary to cause proceedings to be instituted in the name of the United States to have the mine patent vacated and annulled. In response to such ap- plication, Secretary Lamar made the following ruling in which he holds with the Montana Court, that when townsite claimants fail to file an adverse claim when application is made for mineral patent, they waive all claim thereto, and that the mineral patent when issued is conclusive of all antecedent facts neces- sary to support it:
 DEPARTMENT OF THE INTERIOR,
 OFFICE OF THE SECRETARY,
 WASHINGTON. D. C., June s. 1886. Hon. A. H. Garland, United States
 Attorney General.
 SIR:-I have the honor to inclose here. with copies of two reports from the Commissioner of the General Land Office, to wit: of February a4,h and May B, 1886, relative to the application of certain residents of Butte City, Montana, for the institution by the United States of suit to set aside the patent issued March IS, 1881, to David N. Upton ct al. for the "Smoke House Lode" mining claim, which was referred to this de- partment by your letter of November 25, 1885. Transmitted with the said re- port are the papers accompanying your said letter, and also certain affidavits, etc., filed in this department since its recep- tion here.
 The application is based on the charge that said patent was procured wrong fully, in that the proofs, upon which it issued, falsely and fraudulently repre-. sented that the land was valuable for minerals, that the requisite $500 worth of work had not been done upon it, and that the claim had not been staked of as required by the statute. The allegation of the want of necessary marking, work, and discovery of valuable minerals, are more or less amply supported by the afidavits of number of reputable citi. zens of Butte City, who have been familiar with the Smoke House Lode for many years. But, in the view take of the case, it is unnecessary for me to de- termine whether the byima facie thus made is sufficiently strong, and this for the following reason:
 The papers before me show that the Smoke House Lode is situated entirely within the limits of the townsite of Butte, for which patent issued on Sep tember 76. 1877. The lode location was made in 1875, but the application was not made until January, 1880, and patent did not issue thereon until 1881, as afore- said. While the application was pend- ing, to wit: in April, 1880, protests were filed by the Mayor of Butte City, and others, alleging various causes (and among others the worthlessness of the land for minerals) why patent should not issue. The protestants, however, aban- doned the charge that the land was non. mineral, and as the final proofs were complete, and no adverse claim had been filed, the patent was in due time issued.
 Subsequently, actions in the nature Of ejectments were brought by the owners of the Smoke House Lode patent against various persons in possession of parts of said lode under the townsite patent, and the Supreme Court of Montana, at theil January, 1886, term, affirmed the judg ment rendered below for the plaintiffs In respect to the required location, dis cevery, work, etc., they ruled, as will fully appear in a certified copy oftheir opinior forwarded herewith, that "the issuance o the (mineraD patent conclusively prove all these precedent acts and facts, whicl the Land Department must find to exis before patent can rightfully issue;" anG they therefore held that evidence t, prove the non-existence of these act and facts was incompetent in the action then under consideration. In my judg meat, this ruling is correct exposition of the law. It was because oft, as it ap pears, that the parties claiming unde tho touoe;t. nataot hova acGo1 the ;,,